Five things Snowden leaks revealed about NSA’s original warrantless wiretaps

Looking through call records? It was actually the telcos' idea.

As stories based on Edward Snowden’s trove of leaked National Security Agency (NSA) documents continue to trickle out, most reporters have focused on what they can tell us about the spy agency’s current or recent surveillance activities. Yet one of the most interesting documents from Snowden’s cache, published in full by The Guardian back in June, sheds new light on the granddaddy of them all: President Bush’s original warrantless wiretap program.

The program was broader than originally reported

Both president Bush and members of his administration repeatedly stressed that the warrantless wiretap program was narrowly limited to “persons reasonably believed to be members or agents of al Qaeda or affiliated terrorist organizations.” Perhaps that was true by the time the New York Times revealed the program’s existence. But the description of the NSA's IG suggests that, at least initially, the president authorized far broader surveillance, encompassing all communications between the United States and Afghanistan. As the draft report explains:

The Authorization specified that NSA could acquire the content and associated metadata of telephony and Internet communications for which there was probable cause to believe that one of the communicants was in Afghanistan or that one communicant was engaged in or preparing for acts of international terrorism. In addition, NSA was authorized to acquire telephony and Internet metadata for communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States.

The surveillance authorization changed over time, as the report notes, and it eventually dropped the specific reference to Afghanistan. Though the report does reference an appendix further detailing the evolution of the president’s authorization over time, that document hasn’t yet been published. That means it’s unclear whether other countries or regions—such as, say, Iraq or Pakistan—were later subject to similar blanket surveillance authorization.

Cheney’s office wanted domestic communications

According to the IG report, the first version of the warrantless wiretap authorization was drafted by David Addington—then general counsel to Vice President Dick Cheney, now a vice president at the conservative Heritage Foundation—without any input or advice from either the NSA or Justice Department lawyers. Addington subsequently pointed out to NSA director Michael Hayden that his wording “could have been interpreted to allow domestic content collection where both communicants were in the US or were US persons.” That’s presumably because, according to the summary quoted above, the legal wording included a mandate to wiretap communications when “one communicant was engaged in or preparing for acts of international terrorism”—without specifying that the “communicant” had to be overseas.

It was apparently Hayden who declined to take that additional step, on the grounds that the NSA was both technically and legally set up for foreign intelligence collection. Of course, since the NSA was intercepting e-mail as well as phone calls, and it’s not always easy to tell in advance where the parties to an e-mail exchange are located, it seems inevitable that plenty of totally domestic communications got vacuumed into the NSA’s databases anyway.

The phone companies suggested using call records

After the attacks of September 11, 2001—but before President Bush authorized the program that would become STELLAR WIND on October 4—two major telecommunications companies approached the NSA to volunteer their assistance. Though they’re identified only as “COMPANY A” and “COMPANY B” in the reports, experts agree that they are almost certainly AT&T and Verizon. One of them, COMPANY B, had even done some of its own freelance intelligence work: it told the NSA that it had “noticed odd patterns in domestic calling records surrounding the events of 11 September and offered call records and analysis."

Then again, perhaps “volunteer” isn’t quite the right word. The report tallies the costs of the program, which came to a bit more than $146 million over fiscal years 2002–2006. But only about $44 million of that went to the software and hardware infrastructure needed to sift through all that data. By far the biggest expense category—accounting for the other $102 million in outlays—was the “metadata and content” itself, an apparent reference to payments to the participating telecoms.

It was also the companies that eventually drove the shift to the current version of the call records program, using the Patriot Act’s “business records” authority (Section 215). After the publication of the Times exposé, company lawyers appear to have gotten skittish and decided they were no longer comfortable acting on a permission slip from the president; they wanted a court order to keep coughing up the data. (And they eventually got it.)

The scale of the snooping

The original Times story that exposed the wiretap component of STELLAR WIND gave an approximate measure of how many people were under warrantless surveillance at any given time: up to 500 in the US and 5,000-7,000 foreigners. But since names were added and dropped from the target lists over time, it was hard to know the total number of people the NSA had spied on. The Times did quote anonymous officials suggesting that the number of domestic targets “may have reached into the thousands since the program began,” however.

The IG report finally gives us some hard numbers—though it only counts the phone lines and e-mail addresses targeted for collection, not individual human targets, which seems likely to be a somewhat smaller figure. The NSA intercepted communications to or from a total of 37,644 e-mail addresses and phone numbers over the life of the program. About eight percent of the total—3,018—were believed to belong to Americans. Of course, an American didn’t need to be targeted to get sucked into the NSA’s vacuum cleaner; any conversation between someone in the US and one of those 34,646 foreign e-mail accounts or phone lines would have been tapped as well.

For reasons not detailed in the report, spying on e-mail seems to have been far more popular for foreign than domestic targets. Only about 406 domestic e-mail accounts were flagged for interception, compared with 2,612 phone numbers. For foreigners, by contrast, e-mail accounts substantially outnumbered flagged phone numbers, 19,000 to 15,646.

Secrecy impeded effective oversight

Though ultimately more than 3,000 people—mostly within the NSA—were read into the program, the initial secrecy around it was so intense that, notoriously, even the NSA’s own lawyers weren’t allowed to see the legal reasoning justifying it until 2004—something NSA officials themselves found strange.

That secrecy meant that the NSA’s own Inspector General—the agency’s primary internal watchdog—wasn’t cleared to know about the program until August 2002, nearly a year after it began. Even that appears to have been a reluctant concession; NSA Director Michael Hayden had to “make a case” to the White House for reading the IG in. As a result, it was not until February 2003 that the IG “learned of PSP incidents or violations that had not been reported to overseers as required, because none had the clearance to see the report.” The precise nature of those “incidents or violations” remains unknown.

Once again, I can't help but feel like we knew all of this already. I'm glad Snowden was able to thrust it all into the spotlight in a very big way, but seriously, we already knew this when the Patriot Act was passed into law.

Once again, I can't help but feel like we knew all of this already. I'm glad Snowden was able to thrust it all into the spotlight in a very big way, but seriously, we already knew this when the Patriot Act was passed into law.

We didn't "know it" as I know the sun rises in the east, night follows day, and so on - it other words, as a fact with supporting evidence. Instead, we Suspected it because of all that has tended to follow since at least the days of the Thirty Tyrants in ancient Athens back in the 4th century BC.

But yeah, I get your drift. It was a no brainer...which might be why the politicians okayed it. :-o

Once again, I can't help but feel like we knew all of this already. I'm glad Snowden was able to thrust it all into the spotlight in a very big way, but seriously, we already knew this when the Patriot Act was passed into law.

We didn't "know it" as I know the sun rises in the east, night follows day, and so on - it other words, as a fact with supporting evidence. Instead, we Suspected it because of all that has tended to follow since at least the days of the Thirty Tyrants in ancient Athens back in the 4th century BC.

But yeah, I get your drift. It was a no brainer...which might be why the politicians okayed it. :-o

Human nature. Knowing is different than "knowing". Because if you only "know" the government is doing something, it's easy enough to say to yourself "I don't really know for sure, so I'm just not going to worry about it".

The other thing that's human nature, and is even scarrier, is that if people "know" something is happening, they don't get as worked up about it and that let's them also kind of get used to it. Then once they know (for sure) that it is happening, they tend to have a less visceral reaction. Basically, Spazmodica's "I can't help but feel like we knew all of this already" turns into "meh, we already knew this, who cares" in some people's minds. That can be true even for people that would have cared if they found out for sure all at once.

I believe that's why there isn't an even greater response to this than there is. Where are the "anti-big government" right wingers on this one? Conspicuously quiet, IMHO. I believe same effect caused the muted response against torture. Too many people got slowly acclimated to the idea through repeated, uncertain leaks. And then once it's verified they're already used to the idea.

You will find a good 30% or more of the population does NOT know this, doesn't beiieve it or believes this begain with Obama. They do not believe Bush & Cheney's sh*t stinks and never will. This is why charges needed to be filed against Bush & Cheney so the nation could reach a consesus of what has happened - whether they like it or not - it would be much harder to alter and repeat as these events fade into history. The press should recognize the value of these stories and keep the headlines going even if the Whitehouse doesn't like it. That's what they are supposed to do.

By volunteering their records, AT&T and Verizon got an implicit, intrinsic, assumed, unwritten, extension of their monopoly status. Dick Cheney is an evil asshole but so are the telcos for coming forward to help.

I think the majority of people in the US would call Snowden a whistleblower and disagree with Washington's viewpoint - maybe even get angry about US playing enforcer with global politics. But it's also that same majority who are rational and feel helpless to affect change on the national level. I don't think there's ever been a time in the 20th century that the majority have been so disenfranchized from national policies. This isn't sustainable. Look at the $'s spent on an unapproved, unpopular program at the same time they talk about severe cuts hurting millions and dragging the economy down in the name of partisan politics that they view more important than the health of the country.

I think the majority of people in the US would call Snowden a whistleblower and disagree with Washington's viewpoint - maybe even get angry about US playing enforcer with global politics. But it's also that same majority who are rational and feel helpless to affect change on the national level. I don't think there's ever been a time in the 20th century that the majority have been so disenfranchized from national policies. This isn't sustainable. Look at the $'s spent on an unapproved, unpopular program at the same time they talk about severe cuts hurting millions and dragging the economy down in the name of partisan politics that they view more important than the health of the country.

Not a majority. Not even close. Whenever you want a reminder of what regular people are like, think of the Jammie Thomas trial; three separate juries unanimously awarded the record companies between $222,000 and $2 million. Federal jury verdicts have to be unanimous, so that means that between 6 and 12 randomly selected jurors *all* agreed to the monetary awards. And three separate juries did this on three occasions over a period of 5 or 6 years.

Compare these results to the opinions of people you know or tech bloggers and you will likely find that mainstream views are quite different from your own.

How do we get companies like NBC News (and it's equals) to cover this in a way that triggers more discussion among the majority of people? I thought about sending them a link to this story and saying they needed to cover what Snowden leaked more in depth and not just the fact that he leaked something and is now running and hiding.

Their website nbcnews.com seems to only be a one way street. Perhaps the individual reporters can be contacted some how.

Overclassification gone wild! See also the fact that none of the other FISA court judges were allowed to know about Colleen Kollar-Kotelly's ruling authorizing NSA to vacuum up metadata, by White House order - and this also violates the fundamental principles of separation of powers (the judiciary branch is supposed to check and balance the executive branch of government, not grovel under its thumb).

Quote:

the initial secrecy around it was so intense that, notoriously, even the NSA’s own lawyers weren’t allowed to see the legal reasoning justifying it until 2004—something NSA officials themselves found strange. That secrecy meant that the NSA’s own Inspector General—the agency’s primary internal watchdog—wasn’t cleared to know about the program until August 2002, nearly a year after it began. Even that appears to have been a reluctant concession; NSA Director Michael Hayden had to “make a case” to the White House for reading the IG in.

How do we get companies like NBC News (and it's equals) to cover this in a way that triggers more discussion among the majority of people? I thought about sending them a link to this story and saying they needed to cover what Snowden leaked more in depth and not just the fact that he leaked something and is now running and hiding.

Their website nbcnews.com seems to only be a one way street. Perhaps the individual reporters can be contacted some how.

It's surprising that the NSA's top brass were kept out of the loop for such a long time. Who really runs it? I suppose that kind of need-to-know organizing principle is good for secrecy, but it also sounds a bit insane to me. http://goo.gl/wElhU

Once again, I can't help but feel like we knew all of this already. I'm glad Snowden was able to thrust it all into the spotlight in a very big way, but seriously, we already knew this when the Patriot Act was passed into law.

i agree. i knew this because it's basically what Bush/Rice and the media said at the time. Snowden's actions showed a much broader net was cast; basically all electronic communications were inventoried.i would have preferred a recap of Snowden's material instead of a walk down memory lane.

Overclassification gone wild! See also the fact that none of the other FISA court judges were allowed to know about Colleen Kollar-Kotelly's ruling authorizing NSA to vacuum up metadata, by White House order - and this also violates the fundamental principles of separation of powers (the judiciary branch is supposed to check and balance the executive branch of government, not grovel under its thumb).

Quote:

the initial secrecy around it was so intense that, notoriously, even the NSA’s own lawyers weren’t allowed to see the legal reasoning justifying it until 2004—something NSA officials themselves found strange. That secrecy meant that the NSA’s own Inspector General—the agency’s primary internal watchdog—wasn’t cleared to know about the program until August 2002, nearly a year after it began. Even that appears to have been a reluctant concession; NSA Director Michael Hayden had to “make a case” to the White House for reading the IG in.

Is this like me telling my boss, "You don't need to know what I'm doing. Just trust me." He might be inclined to trust me once, but then he'd fire me if it turned out to be something illegal, or questionably bad for public relations.

According to the latest poll, 33 percent of Americans think Snowden did the right thing & 29 percent of Americans remain unsure about Snowden's actions. That's a combined 62% of Americans currently thinking that Snowden might have done the world a favor.

Overclassification gone wild! See also the fact that none of the other FISA court judges were allowed to know about Colleen Kollar-Kotelly's ruling authorizing NSA to vacuum up metadata, by White House order - and this also violates the fundamental principles of separation of powers (the judiciary branch is supposed to check and balance the executive branch of government, not grovel under its thumb).

Quote:

the initial secrecy around it was so intense that, notoriously, even the NSA’s own lawyers weren’t allowed to see the legal reasoning justifying it until 2004—something NSA officials themselves found strange. That secrecy meant that the NSA’s own Inspector General—the agency’s primary internal watchdog—wasn’t cleared to know about the program until August 2002, nearly a year after it began. Even that appears to have been a reluctant concession; NSA Director Michael Hayden had to “make a case” to the White House for reading the IG in.

Is this like me telling my boss, "You don't need to know what I'm doing. Just trust me." He might be inclined to trust me once, but then he'd fire me if it turned out to be something illegal, or questionably bad for public relations.

It might be, if you were on a four-year employment contract and couldn't possibly be fired no matter how badly you screwed up...

In the days after 9/11 I sat at my desk, desperately searching everything I had available, looking for data about the attackers. If I had found anything I would have turned it over immediately. Exigent Circumstances, we all thought another attack was in the works, thousands already dead.

I think everyone forgets what it was like. And we need to make sure no one forgets how our own honest desires to do right can still turn out bad.

Which doesn't really justify why their were bugging EU embassies in Washington.

In the days after 9/11 I sat at my desk, desperately searching everything I had available, looking for data about the attackers. If I had found anything I would have turned it over immediately. Exigent Circumstances, we all thought another attack was in the works, thousands already dead.

You need only look at the internet vigilante effort that sprang up after the Boston bombing to see that happening. But, you know that stuff that gets thrown around about the US being a republic rather than a democracy? This is why it's supposed to be a good idea - so that mob reactions do not end up being policy. The system is supposed to have institutions that will force any reaction to perceived Exigent Circumstances to be checked and balanced to make sure it doesn't trample on the people's rights. Unfortunately it's clear that the system can fail.

According to the latest poll, 33 percent of Americans think Snowden did the right thing & 29 percent of Americans remain unsure about Snowden's actions. That's a combined 62% of Americans currently thinking that Snowden might have done the world a favor.

That can't possibly be right. There is NO WAY sixty two percent of Americans are thinking.

Once again, I can't help but feel like we knew all of this already. I'm glad Snowden was able to thrust it all into the spotlight in a very big way, but seriously, we already knew this when the Patriot Act was passed into law.

We didn't "know it" as I know the sun rises in the east, night follows day, and so on - it other words, as a fact with supporting evidence. Instead, we Suspected it because of all that has tended to follow since at least the days of the Thirty Tyrants in ancient Athens back in the 4th century BC.

But yeah, I get your drift. It was a no brainer...which might be why the politicians okayed it. :-o

Human nature. Knowing is different than "knowing". Because if you only "know" the government is doing something, it's easy enough to say to yourself "I don't really know for sure, so I'm just not going to worry about it".

The other thing that's human nature, and is even scarrier, is that if people "know" something is happening, they don't get as worked up about it and that let's them also kind of get used to it. Then once they know (for sure) that it is happening, they tend to have a less visceral reaction. Basically, Spazmodica's "I can't help but feel like we knew all of this already" turns into "meh, we already knew this, who cares" in some people's minds. That can be true even for people that would have cared if they found out for sure all at once.

I believe that's why there isn't an even greater response to this than there is. Where are the "anti-big government" right wingers on this one? Conspicuously quiet, IMHO. I believe same effect caused the muted response against torture. Too many people got slowly acclimated to the idea through repeated, uncertain leaks. And then once it's verified they're already used to the idea.

Reminds me of a frog in water that is slowly brought to a boil. Awesome strategy. Timeless.

Not a majority. Not even close. Whenever you want a reminder of what regular people are like, think of the Jammie Thomas trial; three separate juries unanimously awarded the record companies between $222,000 and $2 million. Federal jury verdicts have to be unanimous, so that means that between 6 and 12 randomly selected jurors *all* agreed to the monetary awards. And three separate juries did this on three occasions over a period of 5 or 6 years.

Compare these results to the opinions of people you know or tech bloggers and you will likely find that mainstream views are quite different from your own.

Juries are not good samples of the general public, and even if the people selected were representative, the story they receive would not be. Using a jury is much less accurate than using a poll, which can get the complete opposite results by clever word choice. Also, a jury coming to agreement doesn't mean that all the members of the jury would have come to that conclusion if they were asked independently. It means that they don't object enough to the consensus to bother wasting their time for it.

By your logic, the general population thought that OJ Simpson was innocent.

Any chance the email over phone preference internationally was related to the critical shortage of competent translators at this time.Domestic calls are far more likely to be in english and foreign email can be run thru google translate or the like for an quick and dirty conversion.

According to the article on ARS about Snowden's IRQ activities, he sounded initially a lot like a Young Republican or junior Rush Limbaugh. And presumably after seeing a lot of NSA/CIA activity showing how lying seems to have become part of the Gross National Product of the US, he got disenchanted with his job working at Spy Central.

But you know what, it didn't matter what the hell his political beliefs are/were, the crap being dumped on the Bill of Rights by "our secret warriors" is alarming. For that fact alone, he should be given safe passage and immunity from prosecution back to the US so he can sit and talk to the US public and the Congress and Senate about what he knows about NSA/CIA activities against the US population. (I'd also be in favor of a clause he'd have to agree to, stop releasing anything new about what the US is doing to the rest of the world's email, phone and SMS messages.)

It would be a cheap price to pay to find out at least a starting place where we can tear down the giant spying apparatus seemingly dedicated to bulldozing the rights of the citizens that are paying the bills.